EXHIBIT 2.2.5
SUPPLEMENTAL AGREEMENT WITH RESPECT
TO ASSET PURCHASE AGREEMENT
This Supplemental Agreement With Respect To Asset Purchase Agreement is
made this 30th day of September, 2004 by and among FORTRESS NBA ACQUISITION,
LLC, a Delaware limited liability company, FORTRESS INVESTMENT FUND II LLC, a
Delaware limited liability company (collectively, "Fortress"), THE NATIONAL
BENEVOLENT ASSOCIATION OF THE CHRISTIAN CHURCH (DISCIPLES OF XXXXXX), a Missouri
not-for-profit corporation, and each of its affiliated companies signatory
hereto (collectively, "NBA"), and the Official Committee of Residents appointed
in the Chapter 11 Case of NBA (the "Residents Committee").
WHEREAS, Fortress and the NBA have entered into an Asset Purchase
Agreement (the "APA") dated September 3, 2004; and
WHEREAS, Fortress, the NBA and the Residents Committee wish to supplement
the APA for the purposes, on the terms and conditions and in consideration of
the mutual undertakings herein provided for;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Fortress, the NBA and the Residents
Committee hereby agree as follows, any terms used herein having the same meaning
for purposes hereof as in the APA :
1. Notwithstanding Section 5.06(b)(xv) of the APA regarding the effect
of the Final Order and Stipulation dated May 6, 2004
regarding the Debtors' Motion to Maintain and Honor Obligations
Relating to Entrance Fee Programs at the Debtors' Senior Care Living
Facilities(1) (the "May 6 Order"), Purchaser shall be obligated to
refund Entrance Fees as follows: Any resident who moved into a
Facility prior to February 3, 2004, and vacates his/her Apartment at
such Facility on or after the Closing (as defined in the APA) and
who is entitled to the refund of Entrance Fees under the terms of a
Occupancy Agreement executed by such resident, and whose Apartment
is (or has been) reoccupied on or after the Closing (as defined in
the APA) by an incoming resident (unless such resident's existing
Occupancy Agreement provides for the refund of Entrance Fees at a
time that is prior to reoccupation of such Apartment, in which case
the payment of any refund shall occur at the time set forth in such
Occupancy Agreement), shall be entitled to an Entrance Fee refund
equal to 75% (or the percentage set forth in the former resident's
Occupancy Agreement, if different) of the original Entrance Fee paid
by such former resident, regardless of the amount or whether any new
Entrance Fee is paid by such incoming resident, subject however to
any setoff provisions provided in such former resident's Occupancy
Agreement.
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(1) For purposes of this paragraph, capitalized terms used herein not defined
herein shall have the meanings ascribed to them in the May 6 Order.
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2. The phrase "average occupancy rate" contained in Section 2.11(a)(ii)
of the APA shall mean the average daily occupancy rate of a
Facility's independent living units during any immediately trailing
90-day period during the one year-period subsequent to Closing (as
such term is defined in the APA) the acquisition of such Facility by
Fortress from NBA.
3. For purposes of calculating whether a Facility's occupancy rate as
of the Closing (as such term is defined in the APA) is at least 98%
of such Facility's occupancy rate as of the date of the APA in
accordance with the proviso of Section 2.11(a)(ii) of the APA, any
reduction in the occupancy rate as of the Closing shall not be
deemed to be less than 98% of the occupancy rate as of the date of
the APA if the reduction in such occupancy rate is due to a
reduction in occupancy of two or fewer independent living units at
such Facility.
4. In order to determine the occupancy of a Facility for purposes of
the proviso to Section 2.11(a)(ii) of the APA during any immediately
trailing 90 day period during the one-year period subsequent to
Closing, neither departures resulting from the death of a resident
nor departures resulting from the transfer of a resident from an
independent living unit into another care program at the Facility
(e.g.,. a transfer from the Independent Living units to the Skilled
Nursing Facility, Assisted Living Facility or Alzheimer's
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Facility) shall be considered in determining the occupancy of a
Facility.
5. Provided that the APA, as supplemented herein, or an APA containing,
at a minimum, the same provisions related to Residents, is approved
by the Bankruptcy Court, the Residents Committee agrees it will not
commence any Resident Litigation or assert any claim for cure
amounts on account of the assumption by NBA and/or the assignment to
Purchaser pursuant to the APA of the Residency Agreements, provided
that to the extent any claims for the routine maintenance or
ordinary services to be provided by NBA with respect to a
residential unit covered by any Residency Agreement would be
considered to give rise to a cure amount and would have been
asserted absent such assumption and/or assignment, such claim by a
resident shall not be barred hereby. The Residents Committee (i)
hereby waives and releases, on behalf of itself, any and all rights
that it may have to commence or prosecute any Resident Litigation or
to assert any claim for cure amounts on account of the assumption by
NBA and/or assignment to Purchaser pursuant to the Residency
Agreements and (ii) agrees that, except as may be required by court
or administrative order, it will not provide to any third party any
information or analysis of any kind relating to any such Resident
Litigation or cure amounts; provided, however, that the terms of
this paragraph shall be of no
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force or effect if the APA is terminated or if the Closing does not
occur prior to March 31, 2005; and further provided that nothing
herein shall prevent either the Debtors from enacting any rate
increase prior to the Closing or the Residents Committee from
objecting to or otherwise seeking to stay any such rate increase;
and further provided, that in the event that the Debtors do
implement an increase in the base rent or monthly service fees, then
the rates as of the Closing shall be adjusted to be the rates in
effect on the date of the execution of the APA.
6. NBA undertakes in connection with this Supplemental Agreement no
obligation or liability, other than to accept and comply as
pertinent to it with the application of the foregoing provisions of
this Supplemental Agreement, and shall undertake no other obligation
or liability except and to the extent separately agreed by NBA and
approved by the Bankruptcy Court and any other governmental
authority having jurisdiction over NBA as may be required by law. No
liability incurred by any other party hereto or any other person in
connection with this Supplemental Agreement shall be borne by NBA.
7. Each party shall use its commercially reasonable best efforts to
enter into any agreement or to execute and deliver any instrument or
document, and to take any other action, that may be or become
necessary to put into effect the provisions and purposes of this
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Supplemental Agreement, including to negotiate in good faith with
respect to any supplemental term or condition necessary to give
effect hereto and thereto, and will (except as may be beyond its
competence under applicable law) support this Supplemental Agreement
in any governmental or judicial proceeding seeking approval of any
aspect hereof.
8. All obligations of Purchaser hereunder are guaranteed by FORTRESS
INVESTMENT FUND II LLC to the same extent as the obligations of
Purchaser under the APA are guaranteed by it in accordance with the
APA
9. Insofar as this Supplemental Agreement supplements the APA this
Supplemental Agreement shall only be enforceable to the extent the
APA becomes enforceable against NBA, including upon any necessary
approval of the APA by the Bankruptcy Court. Insofar as any
obligation of the Residents Committee hereunder requires approval of
the Bankruptcy Court, such obligation shall only become enforceable
upon such approval.
10. Additionally, this Supplemental Agreement shall not become binding
and effective prior to entry of a final, non-appealable order by the
Bankruptcy Court (i) approving entry by NBA and the Residents
Committee into this Supplemental Agreement and (ii) binding all or
substantially all (within the discretion of the NBA)
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of the residents of the Facilities to all of the same terms as those
to which the Residents Committee is hereby agreeing pursuant to
paragraph 5 of this Supplemental Agreement. All residents of the
Facilities shall be given prior written notice of, and an
opportunity to be heard in connection with any proceeding seeking
such order. All residents who either fail to object to such approval
or who file an objection to such approval that is overruled shall be
bound by the terms of such order. The Residents Committee shall
support any pleading or pleadings filed with the Bankruptcy Court
seeking entry of such order, and shall use its reasonable efforts to
enlist the support for such order of the residents of the Facilities
and any residents councils for the individual Facilities.
11. The several undertakings of the parties set forth in this
Supplemental Agreement are non-severable and shall only be
enforceable if all the obligations of all the parties hereto are
enforceable.
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12. This Agreement shall be governed and construed in accordance with
the laws of the State of New York without regard to the rules of
conflict of laws of the State of New York.
OFFICIAL COMMITTEE OF RESIDENTS
By: /s/ XX Xxxx
_________________________________
Name: XX Xxxx
Capacity: Chair, official committee of Residents
FORTRESS NBA ACQUISITION, LLC
By: /s/ Xxxxxxx Xxxxxxx
_________________________________
Name: Xxxxxxx Xxxxxxx
Capacity:
FORTRESS INVESTMENT FUND II LLC
By: /s/ Xxxxxxx Xxxxxxx
_________________________________
Name: Xxxxxxx Xxxxxxx
Capacity:
THE NATIONAL BENEVOLENT ASSOCIATION OF THE CHRISTIAN CHURCH (DISCIPLES OF
XXXXXX)
By: /s/ Xxxxxxx Xxx Xxxxxxxxx
_________________________________
Name: Xxxxxxx Xxx Xxxxxxxxx
Capacity: NBA President
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